Law & Disorder —

Resistance to Google book deal builds as Google woos Europe

Last week saw a flurry of filings as the deadline passed for parties to …

Last Friday, the deadline passed for formal comments from parties interested in the Google Book Settlement, but the flow of less-formal comments doesn't seem to have abated. The settlement would turn the search giant into the gatekeeper for out-of-print books, and a variety of groups have now expressed concern for the sweeping changes it would allegedly make to the management of copyrights. This week, however, the focus has shifted to Europe, where Google has faced opposition from France and Germany that has prompted it to offer some concessions to local publishers.

In the US

First, we'll follow the action stateside, where Friday's deadline set off a flurry of filings. The Free Software Foundation was among those that filed an objection, this one focused on licensing issues. Because of the nature of the suit, the settlement focused on copyrighted works, but the works scanned by Google may (now, or in the future) include those covered by the FSF's GNU Free Document License.

"The Settlement, as proposed, does not contemplate works distributed under the FDL or other Free licenses (like the Creative Commons Attribution-Share Alike 3.0 license published by Creative Commons Corporation, the CC-BY-SA)," the objection states. "If the Settlement is approved, Google will be authorized to continue to digitize, sell and partially display books without complying with the 'copyleft' and 'share alike' license terms which are essential to the freedom granted by these licenses." So, in crafting an agreement that protects copyrighted works, Google and the rights holders may have inadvertently made one that will violate other licenses.

Also last week, Amazon filed a brief that argued that the settlement would rewrite copyright law and change the competitive landscape for digital publishing in a way that would be bad for the bookseller's business model. That drew a scathing response from The Authors Guild, one of the parties to the settlement.

(It's worth noting that writers groups are presenting anything but a unified front. The National Writers Union opposes the settlement and has announced that it will be joining the Open Book Alliance formed by Amazon, Microsoft, and Yahoo.)

"Amazon's hypocrisy is breathtaking," according to the Guild, which accuses the company of selling e-books below cost in order to lock in its own monopoly on digital publishing. The statement goes on to point out that the out-of-print books covered by the settlement aren't even a direct competitor to the e-books sold by Amazon.

Still, The Authors Guild doesn't address all the accusations made by Amazon, which also emphasized how the settlement would change the licensing of copyrighted works from an opt-in process to one where rights owners would have to opt-out. In that, the company got some support from the group Consumer Watchdog, which filed an amicus brief that made many of the same arguments that Amazon did. In its brief, the group states, "The proposed Settlement Agreement, if approved, would so massively reallocate the existing rights and remedies under copyright law that it would effectively rewrite the existing statutory regime for the benefit of a single player—Google."

Across the pond

But it's not just US copyright law that's being trampled on, according to Consumer Watchdog; the settlement also conflicts with international copyright agreements. The group isn't alone in thinking that; European publishers have been leery of the deal, and action shifted to Brussels this week, where the European Commission has been holding hearings on the settlement.

Google seems to have come to the hearings well prepared, with some significant concessions to hand to the Commission: books that are out of print in the US but still published in Europe won't be licensed to the Books Rights Registry. The Registry would also pick up two European representatives, one an author, one a publisher.

Will that be enough to sway what might be a hostile crowd? According to various reports, two countries (France and Germany) have already decided that they will oppose the deal. Other Commissioners seem determined to use it as a launching point for a more general attempt to deal with related issues, like the modernization of copyright law to handle digital content and the digitization of works in European libraries.

So, for example, Viviane Reding issued a joint statement with fellow Commissioner Charlie McCreevy. Reding has been involved in attempts to tack a consideration of music file sharing onto legislation that would update Europe's telecom laws, and the statement reiterates that concern. "We also need to take a hard look at the copyright system we have today in Europe," the statement suggests, asking, "Is the present framework still fit for the digital age?"

At the same time, the Commissioners note that only one percent of the works in European libraries have been digitized to date, leaving the continent at risk of lagging in an effort that ultimate should improve public access to significant cultural material. The statement sees a role for private companies in the digitization, but calls for "a truly European solution in the interest of European consumers." Clearly, Google will need more than a few days in Brussels to sort that out.

And behind closed doors

One of those consumer interests is undoubtedly privacy, given the potentially personal nature of a person's reading habits. Here, the story jumps back to this side of the Atlantic, where the US' Federal Trade Commission has been hashing out privacy issues with Google. Although nothing formal has been decided yet, Google issued a formal privacy policy and FAQ that lays out the privacy protections it affords users of its current book service, and details the features that will be used for book sales if the settlement is approved. Basically, Google will keep personal information in-house, and only share information, such as lists of favorite books, if a user specifically opts in.

But, if Google was hoping to keep privacy issues separate from the objections to the book settlement, a coalition of privacy advocates had an unpleasant surprise for it. The ACLU and EFF organized a coalition of authors that have dealt with privacy concerns to file a brief as members of the class of rightsholders involved in the settlement.

The gist of the complaint is that the settlement will leave Google in a position where it could track users' reading habits, but does nothing to ensure that it won't. "The Settlement includes no limitations on collection and use of reader information and no privacy standards for retention, modification, deletion or disclosure of that information to third parties or the government," the filing reads.

The filing actually was modified in time to reflect Google's privacy policy statement, and it notes that there's nothing binding about these rules; Google can change them at will in the future. Obviously, the coalition would like to see something binding written into the agreement.

It's obvious that the concerns about, and outright resistance to, the original settlement have been extensive, and Google is willing to make some significant concessions to try to get the deal to go through. What's less obvious is whether these concessions will be formally made part of the legal settlement and, if so, whether outside parties will have another opportunity to comment on the revisions. The scheduled decision is now less than a month away, but it looks like it's going to be an extremely busy month for everyone involved.

QUOTE: "Google seems to have come to the hearings well prepared, with some significant concessions to hand to the Commission: books that are out of print in the US but still published in Europe won't be licensed to the Books Rights Registry. The Registry would also pick up two European representatives, one an author, one a publisher."

Google's concessions won't impress anyone on the Commission that's well prepared. The Authors Guild hasn't been doing much to actually help authors, but when I talked with them over a month ago, they made clear that they were insisting that Google use multiple, global databases (including Asian) to determine if a book was "commercially available." This "concession" was already a given. It means nothing.

The concession is also irrelevant to the debate. Google wants to make in-print/out-of-print the central issue in a book's copyright status. But there's absolutely no justification for that in U.S. copyright law or the Berne Convention. (The latter governs copyright law in 164 countries, including the U.S.) Google claims are an illustration of a propaganda technique called the Big Lie. Repeat the claim that copyright protection is any way affected by print status often enough, and some begin to believe it (particularly in the press). It's why in most debates the arguments you hear most often are those most likely to be false.

The "concession" of two European representatives on the Book Rights Registry is even more trivial. The BRR is a RIAA-like agency for authors and has never been a focus of settlement debate. The settlement does little more than fund its establishment. In fact, those involved in promoting it have told me that they resent the link the media (and thus the public) is drawing between the BRR and what the settlement empowers Google to do. The BRR's influence on what Google does is insignificant. The BRR must come, cap in hand, to Google for money, not vice-versa. Two representatives on the BRR board or twenty won't make any difference to how the settlement will be implemented. Again, well-informed Commissioners will know that. And if they don't, there are enough parties in this dispute to inform them. The Germans, in particular, have been after Google the longest and are the best informed--better informed, in fact, than our own Department of Justice, which seems to regard this as little more than an anti-trust issue.

Those who'd like to read the actual filings for and against the settlement can go to The Public Index. It is doing an excellent job of getting and posting the documents filed with the court. And don't worry. While most are in legal language, you can still follow what they say even if you aren't a lawyer.

You'll also discover something that hasn't been well reported in the press, that the objections to the settlement are far more numerous and weighty that those supporting it. The former cite copyright law, factual data, and court decisions. The latter generally say something along the lines of, "Gee, this is great, free books!" Here are the numbers as of late Tuesday afternoon and after the deadline for filing.

Amicus Briefs: 4 (on both sides). 6 are pending and may or may not be filed. If I were Sony, I'd drop into a neutral position.

Letters in Support: 11 (typically two pages long and little more than expressions of a desire for lots of free books)

Letters Raising Concerns: 4 (typically criticisms of specific features of the settlement)

Opt-Outs: 10 (these should probably count as in opposition)

If someone has the time, they might want to do a for/against page count, but it is clear that, in the terms that matter in a court dispute to be decided by a judge, those with objections are far ahead of Google. This isn't the close horse race the media (including Arstechnica) is trying to portray.

I've been involved at the heart of this dispute since I and six other authors persuaded the court to extend the settlement deadlines by four months. My suspicion is that Google hoped to slip by the court a radical alternation in copyright law, shifting the emphasis from consent of the author to status in the marketplace. In that they have failed. As clever as their lawyers are, they've been caught flat-footed by the substantial and well-argued objections to the settlement filed in the past two weeks. For an excellent example of what their lawyers face, see the objection filed last week by the Federal Republic of Germany:

Given me a law degree and a million dollars and I still don't know how I'd counter those arguments--not that I would want to.

Court decisions, particularly those involving copyright law, are never a sure thing. But if I were a betting man, my money would be on the judge tossing the settlement out as not even remotely legitimate. And it would be the best thing that could happen to Google. They're acquiring the same problem with hubris (overweening pride) that came over Microsoft in the early 1990s.

In the end, the issues this settlement attempted to resolve badly will have to be dealt with fairly and equitably by internationally agreed adjustments to the Berne Convention to bring it up to date. The Convention hasn't be revised in 30 years, and that's at the root of our problems.

"Amazon's hypocrisy is breathtaking," according to the Guild, which accuses the company of selling e-books below cost in order to lock in its own monopoly on digital publishing. The statement goes on to point out that the out-of-print books covered by the settlement aren't even a direct competitor to the e-books sold by Amazon.

I don't know about anyone else, but if an ebook is priced higher than $5.00 I flat out refuse to purchase it. There is no reason why I should pay the same price for an ebook as I would for a soft cover, since they need to generate the electronic copy anyway when the book goes to print. Most presses being run these days are digital presses, and the input to these is typically a PDF.

As far as this Google mess goes, I hope it falls flat. I do not believe that Google should have the ability to do any of this. If there are orphan works, then they should be held in the public trust. If they have been printed in the US or Canada, then there is typically a copy on hand at one of the official book libraries. It is there where these books should be digitized and made available to others to do as they will.

"I don't know about anyone else, but if an ebook is priced higher than $5.00 I flat out refuse to purchase it. There is no reason why I should pay the same price for an ebook as I would for a soft cover, since they need to generate the electronic copy anyway when the book goes to print. Most presses being run these days are digital presses, and the input to these is typically a PDF."

You're not paying for paper when you buy a book. You're buying the words in the book. If all you care about is paper, just go to a stationery store. As to the writers, the work for them has nothing to do with the paper it's written on, and everything to do with the words.

I'm saying that the printing and distribution process adds very little to the overall cost of a book. If you don't believe me, check out some of the POD services out there. For a B&W book, it doesn't cost much at all - a few dollars. Then there's the cut for the company who does it: Amazon and Lulu are two big examples. When you're talking a company like Random House, they don't do POD. They do mass printings which greatly reduces the per-print cost. So, yeah, I suspect there's an extra few dollars per print including distribution. But it's small taters compared to the rest.

As much as I appreciate what Google is trying to do - and I do believe there's some altruistic intent - I think it does need to seek out permission of copyright holders before doing their thing. This is what I was thinking: if a writer has to contact Google about opting out, then what's to stop the next company that decides to follow Google's footsteps from doing the same thing with simply asking the author's to opt out. Ok, if only two companies do it - still not too big of a deal. But when would it necessarily stop? Would Google be the only one allowed to do this, or would any Tom Dick or Helen be able to set up shop and do the same thing with anyone's book without any fear aside from the letter from an author who decides to opt out? With the books that are out of copyright - public domain as we call it - by all means, nobody should try to stop them. But for the rest of it, authors should have the chance to opt in rather than put the burden on the author to opt out.

I don't know how those individual costs break down, but it boils down to this:

Its unit cost is zero. And that goes into the value assessment of any product. You can whine about it, but that will not change.

Its about how much that product (the words wrapped in a fancy text file) is WORTH to the potential buyer. The buyer doesn't get any fancy packaging, or anything to put on the shelf

Theres money for the retailer, and money the retailer passes on to the author/distibutor/etc. I don't care (and shouldn't) how much of the authors money he/she has contracted away. Its not my business.

The cost of printing the book may only be a few dollars ($1-3) for a paperback, but that means that an ebook needs to cost that much less before I don't feel I'm being ripped off.

I still think that if they really want ebooks to sell well, then they should treat them as a supplemental purchase rather than a replacement. I hope that I'm not alone in being willing to spend an extra $1-2 on top of the cost of a hardcover to get the ebook as well. I prefer to buy the hardcover rather than paperback because it doesn't get as worn and beaten up, but it is much more difficult to take two or three with me to read when I travel. Having an ebook reader would be much simpler, and while they are expensive now, the price will come down in a year or so. However, the ebooks themselves are way to expensive and don't seem to be a good value since you loose the permanence of a good book.

Google's desire is to ask for forgiveness, rather than permission on reproducing out-of-print books.

As long as some minimal due diligence is done and documented, I think its a great idea, but not if only Google gets the privilege. (I'm sure Amazon is with me on that one).

Lastly the idea that Google, or anyone in such a position , should have to pay tribute to the authors guild for is ludicrous. If anything they should be required to put some money in an escrow account for a certain period of time, against a claim by the copyright holder.

So really, orphaned works legislation is the only way to really solve this.

Originally posted by d4ddi0:Its about how much that product (the words wrapped in a fancy text file) is WORTH to the potential buyer. The buyer doesn't get any fancy packaging, or anything to put on the shelf

No, it's about what the seller chooses to sell it for. If Alice goes out and does a bunch of market research on website popularity broken down with highly detailed demographics and produces a report, she can choose to sell it for $5 (or even free with ads) and market it to everyone with a website, or she can choose to charge $10,000 and sell it only to companies that are willing to fork over the cash.

If you're someone who wants to pay $5, and Alice will only sell it for $10K, you're pretty much SOL. Sellers always have the right to decline to sell you something at the price you want to pay.

Economics 101: a sale only occurs when *both* the buyer and the seller agree on a price.

The printing definently does add to ther cost. Most consumer product pricing is done in a formulatic way of cost analysis. The whole "we have to sell it for more than it costs to make" is true no matter what market you are in. It will set the lower bounds of the price at the very least. You most likely wont see a book at B&N or Borders going for 1 or 2 bucks as thats what it cost them to produce it.

When the work cost nothing to reproduce, then you can sell it for cheaper as your profit margin has just gone up exponentially. Having 1 digital copy of a work is just as good to the seller as having 100 million copies in terms of supply. It completely blows the supply part of the supply and demand equation out of the water when considering to keep a book in print and for how long relative to its long term pricing structure. You could sell the book for $2 or $5 forever if you wanted but physical booksellers have to adjust their pricing overtime due to these limitations as they have a inherently limited supply that costs money to produce.

One area that I haven't really heard anything about is cover-art illustrators. What happens to them when the work is available free from their picture on the front? Seems to kinda short change them as im sure they wont be getting any cuts of the money. Or are they typically contracted in a "one time payment" type of way? I really dont know but I am surprised that I haven't really heard anything about them.